While the ex-prosecutor in the state’s largest county waits to hear whether he will get a black mark for misconduct on his record, the Marion County disciplinary action against Carl Brizzi has broader professional conduct implications for attorneys throughout Indiana.
Testifying before Shelby Circuit Court Judge Charles O’Connor just a week after leaving the elected prosecutor’s office, Brizzi defended himself on the stand against disciplinary charges alleging he violated the Indiana Rules of Professional Conduct by making public statements on two pending high-profile murder cases in 2006 and 2008.
The man who served as the county prosecutor for two terms from 2003 to 2010 appeared in court Jan. 7 on the disciplinary case against him. Two continuances last year prolonged the hearing until after he’d finished his eight years in office.
The Indiana Supreme Court Disciplinary Commission filed a formal complaint against Brizzi Oct. 1, 2009, accusing him of making statements that went beyond the public information purpose and prejudiced the two cases, in violation of Rules 3.8(f) and Rule 3.6(a).
One of the allegations stems from an April 2008 news conference when Brizzi made statements about accused multi-state serial killer Bruce Mendenhall. The second allegation involves a 2006 news release about the Indianapolis Hamilton Avenue slayings, where seven people were killed and Brizzi went after co-defendants Desmond Turner and James Stewart. At the time of charging, Brizzi noted in a news release, “They weren’t going to let anyone or anything get in the way of what they believed to be an easy score.”
While investigation on this disciplinary matter began in 2007 and the disciplinary commission filed official charges in late 2009, the litigation has moved slowly because of the commission’s broad request for discovery from multiple media outlets in Indianapolis.
Originally, a two-day hearing was set before Judge O’Connor in April 2010 and then continued until October. But the ongoing discovery issues that motions described as “broad” and “voluminous” pushed the hearing back to January 2011.
Brizzi is being represented by Indianapolis attorney Kevin McGoff of Bingham McHale.
Arguing for the disciplinary commission, attorney David Hughes said Brizzi’s comments were prejudicial against the individuals. He asked questions during the hearing that implied the motivation behind the statements was part of a larger message the prosecutor was sending at a time when Indianapolis was experiencing higher crime trends and, in 2006, when Brizzi faced a heated re-election race.
“In today’s media market, what a prosecutor says in public really matters, especially in a big market like Indianapolis,” Hughes said.
Attorney Matthew Symons, who now works as a deputy prosecutor in Marion County and previously served as Brizzi’s media relations manager and his 2006 campaign manager, was the only other person aside from Brizzi to testify. He spoke about the prosecutor’s office standards and practices in holding press conferences and communicating with the media.
On the stand, Brizzi furthered Symons’ explanation and said he strived as prosecutor to help explain what was happening in his office and with criminal proceedings in a way that the public could easily understand. He discussed how he found out about the Hamilton Avenue slayings when he was out of the state in 2006 and how he always worked to be mindful of due process and potential prejudice issues.
At one point, Brizzi described how he always said or made it clear that the charges were only allegations and not meant to insinuate a person had actually been found guilty before the commencement of court proceedings.
“It’s a delicate balance you have to strike,” he said in reference to a question from his attorney about how the conduct rules apply to prosecutor statements. “The public doesn’t know what we’re reviewing in the office, so we must tell them. I want to give out as much information as I can to the public, without interfering with a defendant’s right to a fair trial.”
Brizzi testified that he could not recall the particular context behind the isolated comments that are alleged to be rule violations. Because the Turner and Mendenhall cases were both capital cases involving the death penalty, Brizzi said he wanted to make sure the general public understood why he was making such a “monumental decision” involving both defendants.
Hughes argued that the comments were prejudicial, and during the hearing he and Brizzi sparred over whether the statements were valid based on public record and basic public knowledge at the time. Brizzi contends that in his initial decision to pursue the death penalty against Turner it was important to talk about the five aggravators that were “facts” and led him to make that decision; but Hughes dismissed that notion and said it amounted to the prosecutor attempting to try the case through the media.
On the broader statewide implication points, Hughes argued the statements were prejudicial to the administration of justice as soon as they were spoken and that “actual prejudice” of jurors shouldn’t be required as proof. He cited a comment by U.S. Supreme Court Justice Anthony Kennedy indicating that actual prejudice shouldn’t be the test in these misconduct actions because then any “Disciplinary Commission is a fool’s errand.”
Responding to a specific question from Hughes, the former prosecutor said he has never witnessed public opinion shaping criminal proceedings. The answer drew a cynical response from Hughes, and Brizzi clarified his answer to say he has never observed that impact because the process ensures a defendant receives a fair trial and that he has not been in the practice of filing charges without the belief of a person’s guilt based on the evidence.
Though Brizzi said he isn’t sure whether Rules 3.6(a) and 3.8(f) have a built-in timeline that might distinguish between statements being made in real-time versus two years later, his understanding has always been that the professional conduct rules focus on the bigger picture of ensuring a fair trial and unbiased criminal proceedings.
“If it’s a strict ‘you said it’ test, then we would’ve been done a long time ago,” he said. “I said it and admit that. But it’s not (the test), and I don’t think this was prejudicial to the trial and the evidence shows that. I do not believe I violated those rules.”
Both parties have until Feb. 25 to submit proposed findings, and then Judge O’Connor will issue a report for the Indiana Supreme Court’s review. The state’s five justices are the final decision makers on this matter, and if no agreement is reached between the parties then the justices will decide whether any misconduct occurred and, if so, if sanctions are necessary.•